United States v. Chandler

United States Court of Appeals
For the First Circuit

No. 07-1583

UNITED STATES OF AMERICA,

Appellee,

v.

ISAAC NATHANIEL CHANDLER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Senior U.S. District Judge]

Before

Lynch, Chief Judge,
Tashima,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Sandra R.
Beckner, Assistant United States Attorney, were on brief, for
appellee.
Raymond J. Rigat for appellant.
Isaac Nathaniel Chandler on supplemental brief, pro se.

July 18, 2008

*
Of the Ninth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Isaac Nathaniel Chandler appeals

the 188-month sentence he received after pleading guilty, pursuant

to a written plea agreement, to a three-count indictment. The

government asks us to dismiss this appeal because, in the plea

agreement, Chandler waived his right to direct appeal "if the

sentence imposed by the Court is within the guideline range

determined by the Court or lower." The district court determined

that the applicable guideline range was 188 to 235 months and

sentenced Chandler at the lowest point in that range. Chandler

argues that we should disregard the waiver of appeal and proceed to

the merits of his claims that (1) the district court erred by

making a cash-to-drugs conversion, which had the effect of

increasing his total offense level by one point, and (2) the

resultant sentence was unreasonable. In a pro se submission

Chandler also claims that he only assented to the plea agreement

because he received ineffective assistance of counsel. He further

asks us to remand for resentencing in light of the retroactive

amendments to the sentencing guidelines for offenses involving

crack cocaine.

On the basis of the record before us, we conclude that

Chandler waived his right to appeal a within-guidelines sentence

and that enforcement of the waiver would not "work a miscarriage of

justice." See United States v. Teeter, 257 F.3d 14, 25 (1st Cir.

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2001). Hence, we enforce the waiver and dismiss the appeal. We

also dismiss Chandler's pro se claims as procedurally flawed.

I.

The facts are not in dispute. On May 4, 2006, officers

from the Providence Police Department executed a search warrant for

Chandler and his two residences in Providence. The officers found

$205, jewelry, and 6.7 grams of crack cocaine in their search of

Chandler himself. Then at the first residence, which was located

within 1,000 feet of a middle school, they found 20.36 grams of

crack cocaine, a set of digital scales, packaging materials, and

cutting agents. At the second residence, the officers found a

loaded .45 caliber pistol, several boxes of home theater equipment,

two boxes of crack cocaine weighing 13.77 grams, and a safe

containing $2,500. Officers also seized a 1994 Lexus with a

sophisticated surveillance system installed in the trunk. After

being advised of his rights, Chandler admitted that the crack

cocaine and the firearm belonged to him. He admitted to selling

crack cocaine and stated that he kept the firearm for his

protection.

On October 4, 2006, a federal grand jury returned an

indictment charging Chandler with possessing with intent to

distribute five grams or more of cocaine base within 1,000 feet of

a public secondary school, in violation of 21 U.S.C.

§ 841(a)(1),(b)(1)(B) and § 860, possessing with intent to

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distribute five grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B), and being a felon in possession of

a firearm,1 in violation of 18 U.S.C. § 922(g)(1). The indictment

also sought forfeiture of the $2,705 in cash, the home theater

equipment, and the Lexus.

Chandler entered into a written plea agreement in which

he agreed to plead guilty to all three counts, and further agreed,

inter alia, that (1) he possessed 40.91 grams of cocaine base in

the form of crack cocaine, (2) the items named in the indictment

were subject to forfeiture "as proceeds of illegal conduct,

property facilitating illegal conduct, property involved in illegal

conduct . . . and substitute assets for property otherwise subject

to forfeiture," and (3) a two-level enhancement for possession of

a firearm pursuant to U.S.S.G. § 2D1.1(b)(1) would apply to his

sentence. In the agreement, he also waived the "right to file a

direct appeal, if the sentence imposed by the Court is within the

guideline range determined by the Court or lower." The government,

in exchange, agreed (1) not to file an information under 21 U.S.C.

§ 851, (2) not to prosecute Chandler under 18 U.S.C. § 924(c) for

possession of a firearm in furtherance of drug trafficking, (3) to

recommend an acceptance of responsibility reduction, and (4) to

1
Chandler had two prior state felony convictions for drug
distribution.

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recommend the lowest sentence within the applicable guideline

range.

The agreement noted that the court was "not bound by the

parties' stipulations of fact, offense level adjustments, or the

government's recommendations" and that "even if the Court's

guideline determinations and sentence [were] different than

[Chandler] expect[ed], [Chandler would] not be allowed to withdraw

[his] plea of guilty." The agreement contained an integration

clause and stated that "[n]o other promises or inducements have

been made concerning the plea in this case." The agreement also

contained a certification that Chandler and his attorney had

discussed the terms of the agreement, and that Chandler had read it

or had it read to him, and that he understood its provisions.

At the January 5, 2007 plea hearing, the district court

orally confirmed that Chandler had read and discussed the plea

agreement with counsel and that he understood it. Chandler

affirmed that the agreement did not "leave out anything that [he

thought was] part of the agreement" and that no one had "made any

other promises to [him] that [had] caused [him] to decide to plead

guilty." During the colloquy, the court also specifically

addressed the appeal waiver clause twice:

COURT: Do you also understand that . . .
normally, if you are sentenced for an offense,
you would have a right to appeal your
sentence, but under the terms of the plea
agreement, you have agreed to give up any
right you have to appeal your sentence, as

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 long as the sentence is within whatever
guideline range applies in your case?
In other words, you can still appeal
your sentence if it's above the guideline
range, but if it's within or below the
guideline range, you can't appeal, do you
understand that?
CHANDLER: Yeah.
. . .
COURT: You would be able to appeal your
sentence only if the sentence is above the
guideline range that applies in your case.
But, otherwise, you wouldn't be able to appeal
your sentence. . . . Now, do you
understand . . . what all the rights are that
I've mentioned?
CHANDLER: Yes.

At the conclusion of the colloquy, the district court found, as

required by Federal Rule of Criminal Procedure 11(b), that Chandler

was competently, knowingly, and voluntarily pleading guilty to

charges for which there was a sufficient factual basis, and

accepted the plea.

In its presentence report, the Probation Office converted

the $2,705 in cash, which had been found on Chandler's person and

in a safe in one of the residences, to its equivalent quantity in

crack cocaine.2 The report also placed Chandler in Criminal

2
The cash was converted to 54.1 grams of cocaine base, based
upon an approximate cost of $50 per gram. Chandler does not
challenge the accuracy of this cost estimate. As a result of the
conversion, the Probation Office concluded that the total quantity
of cocaine base involved in the case was 95.01 grams. The net
effect of the conversion, when coupled with the other guideline
adjustments and Chandler's career offender status, was to place
Chandler's total offense level at 32. If he had been sentenced
using only the 40.91 grams of crack cocaine actually seized, his
total offense level would have been 31.

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History Category ("CHC") VI, as a result of his career offender

status. These factors, taken together with the firearm enhancement

and acceptance of responsibility reduction provided for in the plea

agreement, placed the advisory guideline sentencing range at 210 to

262 months.

Over Chandler's objection, the district court adopted the

Probation Office's conversion of the cash into a drug quantity for

sentencing purposes. The court found that the government had not

promised, in the plea agreement, that Chandler's "sentence should

be based on possession of 40.91 grams of crack cocaine and not on

anything else." The court also noted that the agreement was not

silent as to the cash. Instead, it explicitly described the

forfeited cash as proceeds of illegal conduct. The court

explained:

[A]lthough the Government didn't specifically
say that the cash would be considered or could
be considered in determining the calculation
of the sentence, it didn't say otherwise, and
the other provisions in the agreement suggest
that both sides considered the cash to be the
proceeds of the drug activity.

The court further noted that it was not, in any case, bound by the

plea agreement and was required to make an independent

determination as to whether the cash to drug conversion was

appropriate. In making that determination, the court stated:

The facts are that some of the money was found
on Mr. Chandler's person, and a substantial
quantity was found in a safe in close
proximity to drugs and the firearm. . . . I

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 think the only reasonable conclusion the
Probation Officer could have come to, and did
come to, was that this money was the proceeds
of drug activity. There's no other
explanation for it.

The court added that there was no evidence that Chandler had earned

the money from anything other than drug sales.

At the end of the sentencing hearing, and over the

objection of the government, the court concluded that sentencing

Chandler under CHC VI overstated his criminal history because the

two drug felonies that qualified him as a career offender were the

only two convictions on his record. The court thus granted a

"horizontal" departure and applied CHC V instead of CHC VI. As a

result, the court determined that the applicable guideline range

was 188 to 235 months. The court then considered the factors

delineated in 18 U.S.S.C. § 3553(a) and sentenced Chandler to 188

months. This appeal followed.

II.

As a threshold matter, we must determine whether to

enforce the appeal waiver in the plea agreement and dismiss

Chandler's appeal.3 In making this determination, "[w]e look first

to confirm that the written plea agreement signed by the defendant

contains a clear statement elucidating the waiver and delineating

3
In its brief in response to this argument the government has
not cited or relied on United States v. Vonn, 535 U.S. 55, 59
(2002), and so we do not consider what effect Vonn may have on this
analysis. See United States v. Borrero-Acevedo, No. 06-2655 (1st
Cir. July 10, 2008).

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its scope." Teeter, 257 F.3d at 24. Second, we examine the

transcript of the plea hearing to ascertain whether the district

court "question[ed] the defendant specifically about [his]

understanding of the waiver provision and adequately inform[ed]

[him] of its ramifications." Id. Finally, we consider whether

"denying a right to appeal would work a miscarriage of justice."

Id. at 25.

The appellate waiver in the written plea agreement

clearly meets the standards of the first prong of the Teeter test.

The waiver states: "Defendant hereby waives Defendant's right to

file a direct appeal, if the sentence imposed by the Court is

within the guideline range determined by the Court or lower."

(Emphasis added.) This language is broad enough to bar an appeal

that challenges the application of the guidelines by the district

court. See United States v. McCoy, 508 F.3d 74, 78 n.4 (1st Cir.

2007). At oral argument, Chandler's counsel conceded that

Chandler's appeal was within the scope of the written waiver.

Instead, Chandler focuses on a perceived inadequacy in

the district court's description of the appellate waiver during the

colloquy, the topic of our inquiry under the second prong of the

Teeter analysis. He suggests that the district court introduced an

ambiguity and undermined the efficacy of the written waiver when it

told Chandler that he had given up his right to appeal "as long as

the sentence is within whatever guideline range applies" to his

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case. Chandler claims that this statement could be understood to

mean "whatever guideline range correctly applies" and thus would

contradict the written language of the waiver.

The district court's plain language cannot support this

strained interpretation. The court did not, in fact, use the word

"correctly." Instead, the court unqualifiedly told Chandler that

he would not have the right to appeal a within-guidelines sentence,

and Chandler confirmed that he understood. At the colloquy, the

district court is not required to recite the appeal waiver verbatim

from the written agreement. Instead, "the court's interrogation

should be specific enough to confirm the defendant's understanding

of the waiver and [his] acquiescence in the relinquishment of

rights that it betokens." Teeter, 257 F.3d at 24 n.7. When read

together with the written agreement, as it should be, the district

court's questioning and explanation in this case did not offer any

false assurance that Chandler retained a right to appeal a within-

guidelines sentence for any reason. See United States v. De-La-

Cruz Castro, 299 F.3d 5, 11 (1st Cir. 2002). Thus, we reject

Chandler's contention that the colloquy introduced any ambiguity

regarding the scope of the waiver.

Turning to the third prong of the Teeter analysis,

Chandler argues that enforcement of the appellate waiver would work

a manifest injustice because the agreement is "ambiguous" with

regard to whether the cash would be converted to a drug quantity

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for sentencing and that the ambiguity should be construed against

the government as drafter of the document. We see no such

ambiguity. Although the agreement does not state explicitly that

the cash would be converted to a drug quantity for sentencing

purposes, Chandler had stipulated in the plea agreement that the

seized cash represented proceeds from an illegal enterprise. The

import of this stipulation under the guidelines should have been

clear: the conversion of cash to drug quantity is required by the

sentencing guidelines when the sentencing court determines that the

quantity of drugs seized does not include all of the drugs that

were "part of the same course of conduct or common scheme or plan,"

U.S.S.G. § 1B1.3(a)(2), or that the quantity seized "does not

reflect the scale of the offense," id. § 2D1.1 comment. n.12.

Thus, Chandler should not have been surprised that the drug

quantity resulting from the cash conversion would be factored into

his sentence. If Chandler was surprised by the conversion, his

complaint amounts to an allegation of ineffective assistance of

counsel, which, as we discuss below, we will not consider on direct

appeal.4

4
Chandler also asserts that his plea colloquy was inadequate
because "he was never properly informed by the district court that
the probation officer could convert the seized cash into additional
cocaine base resulting in a higher base offense level." When
Chandler entered his plea, the district court did not yet have the
sentencing report from the Probation Office. At the time of the
change of plea, the district court is not required to anticipate
every nuance of the PSR in explaining the sentencing consequences
to the defendant. Here, the district court explained to the

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 Next, Chandler contends that the district court's

conversion of cash to a drug quantity here was erroneous because

such a conversion should be done only where the amount of cash

seized is relatively large in comparison to the amount of drugs

seized. However, the district court's conversion was in accord

with well-established sentencing practices, see United States v.

Santos Batista, 239 F.3d 16, 20-22 (1st Cir. 2001); United States

v. Huddleston, 194 F.3d 214, 223-24 (1st Cir. 1999); United States

v. Jackson, 3 F.3d 506, 510-11 (1st Cir. 1993) (noting that the

sentencing judge is required to conduct this analysis even where

the amount of currency seized is small), and allowing it to stand

will not work a manifest injustice.

Chandler also argues that his sentence represents an

unreasonable application of the 18 U.S.C. § 3553(a) factors.

However, the miscarriage of justice requirement is "demanding

enough to prevent defendants who have agreed to waive their right

to appeal from successfully pursuing garden-variety claims of

error." Teeter, 257 F.3d at 26. It suffices to say that

Chandler's challenge to the reasonableness of his bottom-of-the-

guideline-range sentence is nothing more than an assertion of

garden-variety error that falls miles short of a "miscarriage of

defendant that the court would "make a decision on [his] sentence
based on the information that is contained in the presentence
report and any other information that may be presented to the
Court" and warned that he could face a sentence of up to 130 years
in prison. No more specificity was required.

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justice." Accordingly, we enforce the appellate waiver and dismiss

the appeal.

III.

In his pro se brief, Chandler raises an ineffective

assistance of counsel claim, alleging that one of his attorneys

assured him that he would receive a 97-month sentence if he entered

into the plea agreement. In Teeter, we recognized that "a claim

'that the plea proceedings were tainted by ineffective assistance

of counsel' is an illustration of an instance where an appellate

court may refuse to honor the waiver." De-La-Cruz Castro, 299 F.3d

at 14 (quoting Teeter, 257 F.3d at 25 n.9). However, Chandler's

ineffective assistance claim is based upon facts that are not in

the record and, hence, is not properly before us. United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting that "[w]e have

held with a regularity bordering on the monotonous that

fact-specific claims of ineffective assistance cannot make their

debut on direct review of criminal convictions").

Chandler also notes the recent retroactive revisions to

the sentencing guidelines for crack cocaine offenses and asks us to

remand for resentencing in accordance with those revisions. The

remedy for defendants who believe they are entitled to such

resentencing is to file a motion with the district court seeking

relief under 18 U.S.C. § 3582(c)(2). See, e.g., United States v.

King, 518 F.3d 571, 576 (8th Cir. 2008). As such, we dismiss

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Chandler's appeal without prejudice to his ability to move for

modification of his sentence under the new guidelines.

Appeal dismissed.

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